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Christopher T. Marsden London: Bloomsbury Academic, 2010, 320 Pp, £60, ISBN 978-1-84966-006-8 (Hbk)

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Christopher T. Marsden London: Bloomsbury Academic, 2010, 320 Pp, £60, ISBN 978-1-84966-006-8 (Hbk) BOOK REVIEW ‘NET NEUTRALITY: TOWARDS A CO-REGULATORY SOLUTION’ Christopher T. Marsden London: Bloomsbury Academic, 2010, 320 pp, £60, ISBN 978-1-84966-006-8 (hbk). Net neutrality, explains Christopher T. Marsden on the second page of this book, is about the rules of the road for Internet users, and about the relationship between the owners of those roads and the users. Government is asked to make a decision as to which users have priority and whether road charging should be introduced, ostensibly to build wider and faster roads in future. On 20 October 1999, the IDT Corporation, then a big a New Jersey based Internet service provider, blocked all email from the UK because some of its customers had received a large number of offensive unsolicited emails. These appeared to come from a UK address, but the spammer had actually exploited a security hole in a UK university system, making it appear as if the bulk emails were originating there. Just before Christmas 2004, Verizon reportedly 1 blacklisted and blocked email coming from IP addresses allocated to a collection of UK and European ISPs. IDT did not, allegedly, contact the University (of Leeds) before the action was taken. The blocking continued for several weeks. The response – to cut off a whole country - was a bit drastic, even if the emails had come from the UK. Given congestion on the network, traffic management is standard practice for ISPs everywhere, though there is a dearth of independent empirical research as to the extent, the precise pattern or the nature of such activity. We simply have no idea whether countrywide lockdowns or similar widespread filtering are commonplace or rare. I mention the IDT story in particular because it was in 1999 that Chris Marsden began his residential fellowship at Harvard Kennedy School, where the seed that was to grow into his excellent book, ‘ Net Neutrality: towards a co-regulatory solution ’, was planted. It was the beginning of 10 years of globe trotting research and engagement with a who’s who of the smartest minds in the business: legal and technical scholars, practitioners and cross disciplinary polymaths who helped to shape the author’s ideas on this complex but hugely important subject. The first and most important thing to say about this book is that it should be compulsory reading for policymakers everywhere. It manages to serve the dual purpose of being a primer on the subject for the general reader while also being an essential handbook for the specialist and the policymaker. Dr Marsden gets to the heart of the key issues of net neutrality: 1 J Gartner, “Verizon's E-Mail Embargo Enrages”, 1 October 2005, available at http://www.wired.com/techbiz/media/news/2005/01/66226 . SCRIPTed (2010) 7:3 579 • Network economics • Vertical integration and oligopolistic market evolution and concentration • Traffic management and quality of service • Civil rights – speech and privacy • Conflicting needs of the large spectrum of Net users • Regulators’ limitations • Intermediary liability • Commercial and political forces driving the internet towards a future of control • European law • The absence of individual Net user influence on policymakers • Co regulatory policy proposals And indeed many more. It is probably the single most comprehensive analysis of net neutrality you will find between the covers of a single volume. If I had one generic criticism of the book it is that the author does not provide enough detail in relation to the engineering and technology of networks. I think there is real value in regulators and policymakers understanding the difference between circuit and packet switching, for example, and this could avoid a lot of confusion. But I would say that, because I am an engineer. In conversation with the author, he pointed out to me that the literature on technology and engineering in this area is already rich, which is true, but it is unlikely to be perused by many non technical policymakers. That is, however, a minor criticism. Dr Marsden had no choice but to leave out vast swathes of material that he would no doubt have liked to have included – that is the nature of a monograph. Tom Standage, digital editor at The Economist magazine, recently criticised the concept of net neutrality as being ‘silly’ 2 and too vague – if you get three geeks in a room you will get four different definitions of the concept (which is probably true!) – and that thing that gets invoked by anyone complaining about something they dislike about the Internet. Geeks and consumer advocates have been arguing that the law should guarantee net neutrality, thereby disabling network operators’ power to engage in discriminatory practices. Mr Standage is concerned that attempts to write net neutrality into law on both sides of the Atlantic will just end up making matters worse. The Internet is not neutral now, and there are lots of things that we do not want to be neutral. For example, it is desirable that spam is blocked, or gamers might want superfast low latency broadband services that they would be prepared to pay extra for. The danger of saying that things must stay as they are is that you fossilise the Internet in its current state. A simplistic net neutrality law might just do that, making illegal a lot of useful things that are presently being done. So the best legislation in relation to net neutrality is none. I share the concerns of the author about the complexity and the dangers of getting it wrong. On the other hand, the vagueness and complexity of the concept and its multiple advocates is not necessarily a bad thing. Just as James Boyle has invoked the environment and environmentalism in his call to protect the public domain, perhaps net neutrality can serve a similar function in relation to the open Internet. After all, ‘environment’ is quite a vague term with many meanings, but it is also an articulation 2 BBC Radio 4, ‘Click On’, Monday 18 October 2010. SCRIPTed (2010) 7:3 580 of a shared interest that brings that interest into being. 3 The hunter and the animal rights activist may dislike each other intensely, but they have a shared interest in protecting the ecology and habitat of the animals they are interested in. In any case, you will not find any over-simplified, table-thumping advocacy in Chris Marsden’s book - of either the ‘cure it with net neutrality’ or ‘cure it with market forces’ variety. This is despite the fact that the introductory chapter begins with a quote from Barack Obama that concludes: “ We can’t have a situation in which the corporate duopoly dictates the future of the Internet and that’s why I’m supporting what is called net neutrality.” Dr Marsden, on the contrary, provides a comprehensive and pragmatic analysis of the state of net neutrality and its regulation and expects both free market fundamentalists and net neutrality purists to disagree with his suggested co-regulatory way forward. You get an idea of the scope of the book through the Introduction, which provides a whistle-stop tour of: net neutrality, network economics, European digital television regulation, interoperability, Microsoft litigation, Napster, Skype, mergers and acquisitions, EU telecoms liberalisation (and the variability in the effectiveness of national regulatory authorities in ensuring local loop competition), GERT (Group of European Regulators in Telecoms), 4 the 2001-2002 unravelling of the universal service commitment in the US, Machiavellian incumbent power games, the need to recognise broadband infrastructure as public works, the ruthless competition and government direction in Korea, the end to end principle, transparency failures, absence of empirical research, quality of service guarantees, 3G in Japan, traffic management, deep packet inspection, and the inevitability of discrimination where architecture permits it. All that and more – including a passionate assertion (with which I wholeheartedly agree 5) that the creation, operation and monitoring of open Internet policy is too important to be left to the experts, since it is about fundamental human rights and consumer welfare, necessitating a balanced approach to net neutrality – in an introduction, before he even outlines the structure of the book, leaves you in little doubt that although it is written in an accessible style, this is a tome that will require the full concentration of the reader. It is clear that net neutrality resides firmly in the realm of what Russel L Ackoff would have described as a ‘mess’, a collection of complex problems interacting with other complex problems and therefore part of a set of interrelated problems, or a system of problems. 6 It is important to point out that Dr Marsden distinguishes two separate non- discrimination commitments in net neutrality, something which itself would likely illicit gnashing of purists’ teeth. What he calls ‘net neutrality lite’ and something that 3 J Boyle, “The Second Enclosure Movement and the Construction of the Public Domain ” (2003) 66:33 Law and Contemporary Problems, 33 -74. 4 Note that between the editing and publication of the book the Group of European Regulators in Telecoms (GERT) was renamed the Body of European Regulators for Electronic Communications (BEREC). 5 R Corrigan, Digital Decision Making: Back to the Future (London: Springer-Verlag, 2007), at chapters 9 and 10. 6 RL Ackoff, Redesigning the Future: Systems Approach to Societal Problems (New York: John Wiley & Sons Inc, 1974). SCRIPTed (2010) 7:3 581 ultimately forms a central plank of his co-regulatory way forward, relates to ensuring that ISPs are not allowed to engage in opaque and discriminatory traffic management to the detriment of Internet users of any class. ‘Positive net neutrality’ on the other hand is about ensuring a balance whereby investment in future broadband infrastructure is not discouraged.
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